The fight against Obamacare is NOT over

The left is attempting to declare the Obamacare fight over. It isn’t. It is a 15 round fight. Conservatives won rounds when they elected Chris Christie, Bob McDonnell and then Scott Brown after the debate was begun. The left won a round when the law passed was passed, and it won a round when the Supreme Court upheld the individual mandate, but conservatives won in that opinion as well, on Medicaid and on the reach of the Commerce Clause.

The left scored a knock-down with the president’s re-election, but the fight isn’t over if the conservatives opposed to the law get up off the canvas and fight on. Oklahoma has, and some states have joined them, though not yet in the courts. They should, and soon.

Somehow, in a nation where a majority dislikes his most signature piece of legislation, Obama nonetheless got reelected. This makes the fight against Obamacare a great deal more difficult, especially since the Democrats kept their control of the Senate. But the Founders, in their wisdom, created a system with many other checks and balances. One of the biggest is federalism. We think of the three branches of the federal government checking one another, but we often forget that the states can also check the federal government (and vice versa). Now is the time for the states to step up and do exactly that.

There’s a diner near my house run by a women who takes pride not only in her food, but in the fact that she runs her place her way. She asks people not to have cell phone conversations in the restaurant, and to keep little kids from shrieking. There are even admonitions to that effect on the back of the menu. It’s a tiny space, and she wants the environment to be relaxing. One of the ways in which she visually represents her my-way-or-the-highway ethos is with a sign on the wall that reads, “Dinner Choices: 1) Take it. 2) Leave it.”

What is cute and endearing at this diner is, however, deeply offensive when it comes to the terrible choice Obamacare gives the states:

1) Establish a state exchange over which the federal government will have control, and under which the state’s businesses will be subjected to crippling taxes, according to statutory language in the law.

2) Don’t establish a state exchange, whereupon the federal government will establish an exchange over which it will have control, and under which the state’s businesses may be subjected to crippling taxes, but only based on a “rule” that the IRS created, not Congress.

Heads you lose, tails you also kinda lose.

If the only choice is between establishing an exchange or not, the states definitely should not. There are a number of reasons for this, including the notion that the IRS rule that establishes the taxes in the case of a federal exchange can be challenged and may be unconstitutional since it was not authorized by Congress; whereas, if states establish a state exchange, the taxes, which are statutorily mandated, definitely kick in.

But as Hugh Hewitt points out, there is an even simpler reason to refuse to establish a state exchange:

Even if the legal fight should fail, it is important for federalism that many states pass on becoming puppets of the feds via the state exchanges. The fiasco-in-waiting of the federal exchange should be on the president’s head, with blame not easily shifted to bungling governors. The president broke it, so he should buy and operate it.

The craftiness of Obama and the architects of Obamacare is now in evidence. They delayed the worst of Obamacare from kicking in until after the election. This helped shield Obama from having to suffer the electoral consequences of having rammed through this highly disliked law. In other words, by refusing to set up state exchanges, state governors can do what the election, sadly, did not: Force Obama to own Obamacare.

But, Hewitt argues, this should happen “only after every argument has been made, and the Supreme Court offered the opportunity to rule on the law as a whole.” States, as many as possible, should file suit against the federal government. Oklahoma is leading the way

Obamacare—all 2,500 pages of it that no one was able to read before voting—is intentionally byzantine and legally abstruse. In the view of its architects, this is its strength: it’s not so much a law as it is authorization for bureaucrats to regulate. However, it’s a weakness as well, as it leaves a number of avenues to exploit in legal challenges.

Oklahoma is going with the “Final Rule” angle . . .

12. Oklahoma has not established or elected to establish an Exchange, and does not expect to do so. As a result, under the plain terms of the Act, employers in Oklahoma should not be subject to the Employer Mandate because of a determination that an Oklahoma resident employed by the employer in Oklahoma is entitled to advance payment of a premium tax credit because of enrolling for coverage through an Exchange established by HHS to operate in Oklahoma. However, the Final Rule purports to make such an individual eligible for a premium tax credit based on enrolling for coverage through an Exchange established by HHS to operate in Oklahoma, with the result that an Oklahoma employer employing such an individual will be exposed to liability under the Employer Mandate under circumstances not provided for under the Act. Thus, Plaintiff seeks declaratory and injunctive relief declaring the Final Rule invalid.

. . . but as Hewitt points out, there are a variety of other ways to go.

This is a narrow argument aimed at a specific rule, but there are other arguments to make, including the damage done to federalism when, upon saying no, the enormous supertanker of Obamacare sails into a state’s legal harbor via the federal exchange and smashes all the docks and other ships, displacing not merely the opportunity to run an exchange but destroying countless other state-administered relationships and regulatory balances.

With Obama’s reelection, the opportunity for a quick scuttling of the Obamacare supertanker vanished. But we still have a robust system of federalism. The states are sovereign entities, and the original conception of our system was that the federal government exists at the pleasure of the states, not the reverse. It is time for the states to get back to basics and remember that fact. First, by refusing to establish a state exchange. Second, by rejecting Obamacare’s Hobson’s Choice and filing suit against whatever aspects of the law it can find to assail.

John Roberts got some things right, and some other things very wrong, in the Obamacare decision. Perhaps it is time to send the ball back into the Supreme Court’s court, and see if maybe he can redeem himself for the poor choices he made the first time around.